Obamacare and the Court

Handing Health Policy Back to the People

BARRY FRIEDMAN is Jacob D. Fuchsberg Professor of Law at the New York University School of Law. He is the author of The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.

In the weeks and months before the U.S. Supreme Court delivered its ruling on the constitutionality of the Affordable Care Act (ACA) in National Federation of Independent Business v. Sebelius, some pundits dubbed the lawsuit "the case of the century." Whatever the Court decided, commentators and activists on both sides of the aisle thought that it would resolve the fate of President Barack Obama's health-care reforms. The ruling would reverberate throughout the worlds of law and politics.

Instead, the Court surprised everyone. A five-member majority led by Chief Justice John Roberts upheld the ACA on grounds that few Court watchers had anticipated. The case may well find its way into the annals of the law. But in the end, Roberts' opinion removed the Court from the debate about health care and put the conversation back in the realm of politics.

BUYING THE BROCCOLI ARGUMENT

The debate over health care began when Obama promised to make health insurance affordable for all. To succeed, he needed to cut a deal with the health-care companies, which had long opposed such reform. In return for an expansion of the pool of insurance subscribers to cover their costs, the insurance companies agreed to neither deny coverage to those with preexisting conditions nor impose higher rates on them. To achieve this compromise, the Obama administration devised what would become known as the individual mandate: the government would require Americans to either purchase health insurance or pay a set amount to the U.S. Treasury. Republicans, opposed to such an expansion of government, fiercely resisted the bill in Congress and, once it passed, promised a full-scale campaign to overturn it. Within weeks of the bill's passage, Republican attorneys general in 26 states had launched a series of legal challenges to the legislation.

In court, opponents of the ACA presented two primary claims. First, they argued that the individual mandate exceeded the bounds of the commerce clause, the power given to Congress by the Constitution to regulate interstate commerce. The states also targeted the legality of the ACA's extension of Medicaid, a move that would cover many who were previously uninsured and deny existing Medicaid funding to states that did not comply.

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